骨折手術感染案：論醫師告知說明義務履行之判斷基準【學習式判解評析】 試閱
Infection after Open Reduction and Internal Fixation of Fracture: The Criterium for the Fulfillment of Physician’s Obligation to Disclose
本文係對於臺灣高等法院2021年度醫上字第19號民事確定判決關於醫師是否履行告知說明義務部分之論理過程及判斷基準為評析，該判決就前揭部分認為Z醫院之骨科T醫師為骨折之病人施行手術，於施行手術前，業經病人於手術同意書簽名，手術同意書上業載明醫師已向病人解釋手術實施與否之風險、選擇手術以外其他治療方式之風險等文字，且病人具有醫療專業背景，與一般毫無醫療專業知識之普通病人不同，應瞭解手術同意書之文義，是難認T醫師於為病人施行手術前有病人主張之未盡告知說明義務之過失，本文係就該結論所涉主要議題即醫師告知說明義務履行之判斷基準予以分析及評釋。
It is in this essay to comment on the rationale and basis of civil medical appealed judgment of Taiwan High Court No. 19 in 2022, whether the physician fulfils the obligation to disclose. In the first part of the judgment, the court held that physician T, an orthopedic surgeon at hospital Z, who performed a surgery on a patient with a fracture, had obtained the patient’s signature on a surgical consent form before performing the surgery. The consent form stated that the surgeon had disclosed to the patient, including the risks of performing the surgery or not , and the risks of choosing a treatment other than it. Moreover, the patient who has a professional medical background, should recognize the meaning of the surgical consent form, in contrast to the patient who doesn’t have such background. Therefore, it would be difficult to find that T failed to fulfill his obligation to disclose to the patient before performing the surgery. This essay would analyze and explain the main issue in the judgment involved in this conclusion, such as on what base the fulfillment of a physician’s obligation to disclose should be determined.
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